R. v. S. (R.J.) [1995] 1 S.C.R. 451: Self-incrimination - Right to silence - Whether accused separately charged with offence compellable as witness in criminal trial of another accused charged with same offence

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO

Constitutional law - Charter of Rights - Fundamental justice - Self-incrimination - Right to silence - Whether accused separately charged with offence compellable as witness in criminal trial of another accused charged with same offence - Whether compellability in such circumstances violates principles of fundamental justice - Whether s. 5 of Canada Evidence Act constitutional - Canadian Charter of Rights and Freedoms, ss. 7, 11(c), 13, 24(2) - Canada Evidence Act, R.S.C., 1985, c. C-5, s. 5.

S was charged with break, enter, and theft. M was separately charged with the same offence. The charges against the two young offenders were laid separately because of an administrative procedure applicable at the youth court. The Crown subpoenaed M as its main witness at S's trial but, following an application by M's counsel, the trial judge quashed the subpoena on the ground that to compel M's testimony would violate s. 7 of the Canadian Charter of Rights and Freedoms. The trial judge found that, in the circumstances, M had an absolute right to silence which made him non-compellable. The Crown proceeded with the trial against S and called the owner of the stolen property and the investigating officer who had received the property from S and placed it in the charge of the property officer. The Crown did not call the property officer and, at the close of the Crown's case, defence counsel argued that failure to call the property officer constituted a break in the continuity of the evidence. In response, the Crown asked the trial judge to dismiss the charges against S on the basis that the charges had not been proven beyond a reasonable doubt. The trial judge dismissed the charges and, subsequently, the charges against M were stayed. The Crown appealed the acquittal on the ground that the trial judge erred in quashing M's subpoena. The Court of Appeal allowed the appeal and ordered a new trial.

Held: The appeal should be dismissed.

Per La Forest, Cory, Iacobucci and Major JJ.: There is in Canada a principle against self-incrimination which is part of fundamental justice. The policy justification for the principle, at common law and in the Charter, rests upon the idea that the Crown must establish a "case to meet". The principle, however, is not absolute and may reflect different rules in different contexts. It also has the capacity to introduce new rules to benefit the overall system.

On the facts of this case, M was properly compellable at S's trial and the trial judge erred in quashing the subpoena. While a statutory compulsion to testify engages the liberty interest of s. 7, M's liberty interest is affected in accordance with the principles of fundamental justice. Fundamental justice is satisfied because neither M's testimony, nor a limited class of evidence derived from his testimony, can later be used to incriminate him in other proceedings (save for proceedings in respect of perjury or for the giving of contradictory evidence).

The similarity between the structure of ss. 11(c) and 13 of the Charter, and the statutory approach apparent in s. 5 of the Canada Evidence Act, demonstrate an obvious attempt to enact in constitutional form the same structural protection against self-incrimination for witnesses which existed historically. The protection envisioned involves a general rule of witness compellability, coupled with an evidentiary immunity. Although care must be taken to guard against defining the principles of fundamental justice in overreliance upon a legislative position, even a position of long standing, to contend that s. 7 of the Charter demands a testimonial privilege for all witnesses is to suggest that the framers of our Constitution misunderstood the nature of s. 5 of the Canada Evidence Act and forgot to include a provision in the Charter comparable to the Fifth Amendment of the American Constitution. Such a proposition is unacceptable.

Further, for s. 7 purposes, there is no need for an exemption to the general compellability rule which is based upon the status of the person whose evidence is sought to be compelled. The possibility that a proceeding not instituted for the purpose of obtaining self-conscriptive evidence will nonetheless have that effect is a problem which confronts every witness who is compellable and who must answer questions pursuant to s. 5 of the Canada Evidence Act. The Charter protections against self-incrimination should not vary with individual status. The Charter's structure, however, cannot be invoked to condone all types of inquisition and one must focus on the purpose, or character, of proceedings at which testimony is sought to be compelled as a way to confine the reach of a general compellability rule. An objection must be lodged against proceedings which are justified by a self-incriminatory purpose. Here, although S's trial might be considered an inquiry in relation to M as witness, the inquiry is of the sort permitted by our law. The search for truth in a criminal trial against a named accused has an obvious social utility, and the truth-seeking goal operates to limit effectively the scope of the proceedings in terms of the "inquiry effect". The laws of relevancy would preclude the random examination of individuals within a criminal trial.

While in Hebert the recognition of a residual role for s. 7 gave effect to the Charter as a coherent system, to use s. 7 as the repository for an absolute right to silence or for the common law witness privilege would do violence to that system since it would become difficult to account for the existence of s. 13 of the Charter.

Section 13, however, does not exclusively define the scope of the available evidentiary immunity. The principle against self-incrimination also finds recognition under s. 24(2) of the Charter and a review of the principles developed under that section discloses a need for a partial derivative use immunity under s. 7 of the Charter. Derivative evidence which could not have been obtained, or the significance of which could not have been appreciated, but for the testimony of a witness ought generally to be excluded under s. 7 in the interests of trial fairness. Such evidence, although not created by the accused and thus not self-incriminatory by definition, is self-incriminatory nonetheless because the evidence could not otherwise have become part of the Crown's case. To this extent, the witness must be protected against assisting the Crown in creating a case to meet.

The test for exclusion of derivative evidence involves the question whether the evidence could have been obtained but for the witness's testimony and requires an inquiry into logical probabilities, not mere possibilities. The important consideration is whether the evidence, practically speaking, could have been located. Logic must be applied to the facts of each case, not to the mere fact of independent existence. There should be no automatic rule of exclusion in respect of any derivative evidence. Its exclusion ought to be governed by the trial judge's discretion. The exercise of the trial judge's discretion will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by its admission. The burden is on the accused to demonstrate that the proposed evidence is derivative evidence deserving of a limited immunity protection.

In the context of S's criminal trial, M's testimony is therefore compellable under the general rule applicable to all witnesses, and the principle against self-incrimination is satisfied if M receives the simple use immunity provided by s. 13 of the Charter, together with a residual derivative use immunity in respect of evidence which could not have been obtained but for his compelled testimony. This residual immunity will be given recognition by the trial judge through the exercise of a discretion, but exclusion will be the likely result because the self-incrimination principle demands the preservation of trial fairness.

Section 5 of the Canada Evidence Act does not infringe s. 7 of the Charter. Section 5(1) of the Act abolishes the common law privilege against self-incrimination, with the result that a compellable witness must answer questions posed, and s. 5(2) offers such a witness protection in the form of an immunity. Neither subsection purports to make evidence of any kind necessarily admissible at a subsequent proceeding. Thus, nothing in s. 5 offends the requirement for a partial derivative use immunity under s. 7.

This Court had jurisdiction to consider this appeal since S could properly raise a question of law based upon M's compellability as a witness. The question associated with M's rights and privileges was initially raised by the Crown in the Court of Appeal, and it would ill comport with our system of law to suppose that S had no right to respond. An appeal to this Court is simply an extension of S's response.

The Court of Appeal did not err in ordering a new trial pursuant to s. 686(4)(b)(i) of the Criminal Code. The Crown did not concede the continuity problem and only made a general concession to the effect that its case did not meet the criminal standard of proof. Irrespective of the Crown's effort to link S to the offence by focusing on his alleged possession of certain property, the Crown had also planned to link him to the offence by offering M's eyewitness evidence. The Court of Appeal was correct to order a new trial in these circumstances, since it cannot be said that the verdict would necessarily have been the same if M had testified.

Per Lamer C.J.: Iacobucci J.'s comments concerning the status of the principle against self-incrimination as a principle of fundamental justice were agreed with and his conclusions regarding the availability of derivative evidence immunity as a means of realizing this principle were generally agreed with. In certain circumstances, however, s. 7 of the Charter will provide additional protection beyond evidentiary immunity in order to safeguard adequately the right of individuals not to be compelled to incriminate themselves and will mandate exceptions to the general rule that the state is entitled to every person's evidence. The right of an accused not to be forced into assisting in his own prosecution is perhaps the most important principle in criminal law and the principles of fundamental justice require that courts retain the discretion to exempt witnesses from being compelled to testify, in appropriate circumstances. The person claiming the exemption has the burden of satisfying the judge that in all the circumstances the prejudice to his interests overbears the necessity of obtaining the evidence. The factors suggested by Sopinka J. will ordinarily need to be considered by the judge exercising this discretion. Here, the trial judge erred in quashing the subpoena against M on the basis of an absolute right to silence.

Iacobucci J.'s conclusions on the other issues arising in this case were agreed with.

Per Sopinka and McLachlin JJ.: The question in this case is whether, under the principles of fundamental justice, a co-accused can be compelled as a witness. This question can be resolved in each case by balancing the principle that the state is entitled to every person's evidence and the principle that an accused is entitled to remain silent. This, generally, is the approach which accords with the common law and therefore, if carried into s. 7 of the Charter, is the relevant principle of fundamental justice. If not included in s. 7, it remains a principle of the common law.

It would be consistent with the development of the common law and the principles of fundamental justice to allow the court to make an exception to the general right of the state to every person's evidence when the right of the accused to remain silent is seen to outweigh the necessity of having that evidence. This exception would recognize the anomaly of the systematic compulsion of persons accused of crime to testify in other proceedings while, at the same time, they are entitled to remain silent if interrogated by the police before their trial and are granted absolute immunity from testifying during their trial. The absence of such an exception would undermine these rights if not rendering them illusory. This approach accepts the basic tenets of the applicable common law principles but with a flexible, principled approach to the exceptions to a common law rule. Further, this approach does not affect the operation of s. 5 of the Canada Evidence Act, which deals with the right of a witness who is already on the stand. It is also more conducive to the efficient conduct of trials.

In some cases, the unfairness of compelling a witness to testify will not appear until after that witness has given evidence. In such circumstances, the person so compelled should not be precluded from seeking a remedy at the trial stage in proceedings against that person.

A person charged may thus have a right to an exception from the principle that the state is entitled to every person's evidence. The person claiming the exception must assert the right before his testimony is taken and has the burden of satisfying the judge that in all the circumstances the prejudice to his interests overbears the necessity of obtaining the evidence. A person who is for all intents and purposes an accused but has not been formally charged may in some circumstances also claim the exception. In balancing the accused's interest in remaining silent against the Crown's interest in obtaining evidence, the following non-exhaustive factors should be considered in arriving at a decision with respect to compellability: (1) the relative importance of the evidence to the prosecution in respect of which the accused is compelled; (2) whether the evidence can be obtained in some other manner; (3) whether the trial or other disposition of the charge against the accused whose evidence is sought to be compelled could reasonably be held before he is called to testify; (4) the relationship between the proposed questions to the accused witness and the issues in his trial; (5) whether the evidence of the accused witness is likely to disclose defences or other matters which will assist the Crown notwithstanding the application of s. 5(2) of the Canada Evidence Act; and (6) any other prejudice to the accused witness, including the effect of publication of his evidence. Failure to raise the issue of compellability at the appropriate time, or an adverse ruling in that regard, will in some circumstances not preclude the matter being renewed in subsequent proceedings. Here, the trial judge erred in quashing the subpoena against M on the basis of the application of an absolute right to remain silent which made him non-compellable. Since the charge against M has been stayed, however, the issue of his compellability will not arise at S's new trial.

Per L'Heureux-Dubé and Gonthier JJ.: Common law protections against self-incrimination focus specifically on situations in which the state seeks to rely on compelled communications - words or actions that may be communicative in character - as a means of proving the accused's guilt. The principle is not so broad as to contemplate all self-incriminatory effects. Such a broad vision of the principle against self-incrimination would be inconsistent with many state actions, such as compulsion to submit to a breath sample, fingerprinting, participation in identification line-ups, or compulsion to produce documents, all of which implicate the individual in his own prosecution. There is also no rule at common law that prohibits use by the state of derivative evidence per se. The derivative use immunity approach is an American invention required to deal with the unique language of their Fifth Amendment. Many of the concerns at common law said to be countenanced by the principle against self-incrimination actually relate even more fundamentally to general considerations of fairness, human decency and the integrity of the judicial system. The doctrine of abuse of process has developed as a means to address these concerns directly. The occasional exception to compellability has been recognized to address these concerns indirectly. If exceptions are to be made to the general rule of compellability, then they should develop along the lines of these underlying principles of fairness rather than out of an imprecise extension of the common law principle against self-incrimination.

In the Charter, ss. 10(b), 11(c) and 11(d) are evidence that there exists a residual principle against self-incrimination under s. 7. This protection manifests itself in the form of the "right to silence". A careful examination of ss. 13, 24 and 7 of the Charter, however, reveals that the Charter has not created a broader fundamental principle against self-incrimination than that which existed previously at common law.

The historical context in which s. 13 of the Charter was introduced suggests strongly that Parliament did not intend to enhance significantly the protections against self-incrimination available under s. 5(2) of the Canada Evidence Act. Had the Charter's drafters intended to depart from the Canadian status quo towards the American model involving derivative use immunity, there would have been material changes in the wording or breadth of s. 13 as compared to s. 5(2). The drafters would not have left such an important change to the indefinite realm of the principles of fundamental justice under s. 7 of the Charter.

The Charter did not, under s. 7, actually create any brand new principles of fundamental justice. The Charter embodies those principles which Canadians consider fundamental to our system of justice and the principle against self-incrimination has not been radically redefined by the advent of the Charter. Defining "self-incrimination" over-inclusively as arising whenever the state obtains evidence which it could not have obtained "but for" the individual's participation would take the notion of self-incrimination far beyond the communicative character that grounds it at common law. If a principle against self-incrimination under s. 7 of the Charter were to be based on the "but for" test, the admission of evidence obtained through breathalyzers, fingerprinting, searches, or compelled production of documents would be inconsistent with s. 7. Objections made to the constitutionality of such evidence, however, are only recognized under the Charter in so far as they address the manner in which that evidence was obtained. Objections to the fact that such evidence may be gathered, and to the fact that the individual was compelled to assist in its production, are not recognized under the Charter. Both the common law and the Charter draw a fundamental distinction between incriminating evidence and self-incriminating evidence: the former is evidence which tends to establish the accused's guilt, while the latter is evidence which tends to establish the accused's guilt by his own admission, or based upon his own communication. The s. 7 principle against self-incrimination that is fundamental to justice requires protection against the use of compelled evidence which tends to establish the accused's guilt on the basis of the latter grounds, but not the former. Since evidence may not be admitted at trial on the basis of any compelled act which is communicative in character, the substantive fairness of the trial is not prejudiced by the fact of prior compelled testimony. Any remaining concerns about fairness must therefore relate to the manner by which the derivative evidence was obtained, and are therefore procedural. Such concerns centre on the integrity of our justice system and on fairness to, and the dignity of, the individual. These concerns are addressed by resort to the notions of fundamental fairness which underlie almost all of the values and principles said to flow from our Charter, and not merely by a broad expansion of the principle against self-incrimination.

Furthermore, like other provisions of the Charter, s. 7 must be approached purposively. A commitment to purposive interpretation entails a commitment to ensuring that a legal principle is interpreted sufficiently broadly to further the interests it is meant to protect, yet not so broadly as to overshoot them. Ultimately, the principles of fundamental justice require a balancing of societal interests with those of the accused. To strike a balance that would effectively prohibit the state from engaging in otherwise lawful activity, in furtherance of a pressing and substantial state objective, which nonetheless has the effect of conscripting an individual to assist in his own investigation, would stultify law enforcement in our country. Accordingly, the common thread that is truly fundamental to our system of justice cannot be so broad as to extend to all potentially self-incriminatory effects of state action. What is fundamental to justice is that the state not be able to invade the sanctum of the mind for the purpose of incriminating that individual. This fundamental tenet is preserved, in its entirety, by a principle against self-incrimination that is communicative in character. This principle, in turn, is largely embodied in s. 13 of the Charter. To the extent that state compulsion may elicit incriminating communications or communicative behaviour from an individual even though not in the context of formal proceedings, this fundamental protection is rounded out by the recognition of a residual right to silence in s. 7. The right to silence in s. 7 is triggered when an adversarial relationship arises between the individual and the state.

Given the protections that already enure to a witness under s. 13 of the Charter and s. 5 of the Canada Evidence Act, an individual who is compelled as a witness at other proceedings only truly stands in an adversarial position vis-à-vis the state when the state is seeking predominantly to build its case against that witness. This adversarial position can exist even in circumstances where the witness has not yet been charged. As long as the state is pursuing a valid purpose and not seeking predominantly to obtain discovery against the witness, however, the right to silence is not engaged, nor has an adversarial relationship between the compelled witness and the state crystallized.

Section 24(2) of the Charter is a remedy for a breach of a Charter right. It is neither a substantive right itself nor a principle of fundamental justice. The s. 24(2) jurisprudence elaborates mainly upon what is meant by the phrase "bringing the administration of justice into disrepute" and should not be overly relied upon in order to define a principle of fundamental justice under s. 7. Section 24(2) is not coextensive with s. 7. If the principles of fundamental justice are the bedrock of our legal system, then they must rest on more solid foundations than this Court's most recent jurisprudence governing s. 24(2).

A witness may be entitled to claim an exception under s. 7 from the principle that the state is entitled to every person's evidence if it is established that the Crown is engaging in fundamentally unfair conduct. Attempts to by-pass the procedural safeguards that are intrinsic to the notions of dignity and individual liberty contained in the Charter and to our conception of fundamental trial fairness are fundamentally unfair conduct that violates the principles of fundamental justice. Fundamentally unfair conduct thus will most frequently occur when the Crown is seeking, as its predominant purpose (rather than incidentally), to build or advance its case against that witness instead of acting in furtherance of those pressing and substantial purposes validly within the jurisdiction of the body compelling the testimony. A witness may not be compelled in a proceeding which is, in essence, an investigation of that witness, rather than a prosecution of an accused. When the state legitimately compels an individual to testify in order to pursue a valid purpose, unfavourable effects flowing from the disclosure of information that may incriminate or otherwise prejudice that person would not per se contravene the principles of fundamental justice embodied in s. 7, given other existing protections under the Charter. As well, the subsequent acquisition of evidence which may be derivative would not, per se, violate the Charter, where that evidence is acquired in a manner that is incidental to the valid purposes for which the witness was compelled. The onus is on the witness to establish fundamentally unfair conduct contrary to s. 7. In determining whether such conduct exists, the status of that witness as a person who has already been charged is not conclusive, but is an important factor in determining whether fundamentally unfair conduct has been established. While findings of fundamentally unfair conduct should not be limited to persons charged, as a practical matter it will be difficult to establish such conduct without such status.

The issue of fundamentally unfair conduct amounting to a breach of the principles of fundamental justice in s. 7 may be raised when the witness is subpoenaed and when the witness is tried. At the subpoena stage, the state shall disclose to the tribunal the general purpose for which it seeks to compel that individual's testimony and the relative importance of that evidence to the prosecution in respect of which the witness is compelled. The witness may then attempt to demonstrate fundamentally unfair conduct from the fact of the compulsion. If the witness succeeds, the appropriate remedy will be a quashing of the subpoena. If not, the issue may again be raised at the trial stage. At that stage, the court will ask itself whether, if what is now known had been known at the time the state sought to compel the witness, an exception would have been made to the general rule of compellability and the subpoena would have been quashed. Through fundamentally unfair conduct, the state may have gained important and diverse strategic advantages. If fundamentally unfair conduct contrary to s. 7 is demonstrated at that stage, the appropriate remedy is generally a stay of proceedings.

In light of the finding as to Crown conduct that would violate s. 7, the protections accorded a witness under ss. 7 and 13 of the Charter are such that although s. 5 of the Canada Evidence Act abrogates the common law privilege against self-incrimination, this fact does not render s. 5 unconstitutional. Section 5 therefore does not violate s. 7 of the Charter.

In the present case, the compulsion to testify subject to possible imprisonment for failure to comply was, itself, a deprivation of liberty which brings the issue of the witness's compellability within the scope of a s. 7 examination. The trial judge, however, erred in quashing the subpoena against M since he arrived at this conclusion on the basis that, under the circumstances, M should enjoy an absolute right to remain silent. The charge against M has been stayed and any question as to his compellability is now moot.

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